electronically filed supreme court 10:11 am
TRANSCRIPT
S. C. No. _______________________
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
CITY AND COUNTY OF HONOLULU,COUNTY OF HAWAIʻI, COUNTY OF MAUI, COUNTY OF KAUAʻI,
Petitioners,
vs.
STATE OF HAWAIʻI; SCOTT NAGO, in hiscapacity as Chief Election Officer; RONALDD. KOUCHI, in his capacity as President ofthe Hawaiʻi Senate; SCOTT K. SAIKI, in hiscapacity as Speaker of the Hawaiʻi House,
Respondents.
ORIGINAL PROCEEDINGCIVIL NO. 18-1-1326-08 (JPC)(Declaratory Judgment; Injunctive Relief)
PETITION FOR EXTRAORDINARY WRITSEEKING PRE-ELECTION RELIEF
PETITION FOR EXTRAORDINARY WRIT SEEKING PRE-ELECTION RELIEF
DECLARATION OF ROBERT M. KOHN
EXHIBITS “1” – “19”
CERTIFICATE OF SERVICE
Electronically FiledSupreme CourtSCPW-18-000073326-SEP-201810:11 AM
DONNA Y. L. LEONG 3226Corporation CounselROBERT M. KOHN 6291NICOLETTE WINTER 9588Deputies Corporation CounselCity and County of Honolulu530 South King Street, Room 110Honolulu, Hawaiʻi 96813Telephone: (808) 768-5193Facsimile: (808) [email protected]@[email protected]
Attorneys for PetitionerCITY AND COUNTY OF HONOLULU
JOSEPH K. KAMELAMELA 2493Corporation CounselLAUREEN L. MARTIN 5927Deputies Corporation CounselCounty of Hawaiʻi 101 Aupuni Street, Unit 325Hilo, Hawaiʻi 96720 Telephone: (808) 961-8251Facsimile: (808) [email protected]@hawaiicounty.gov
Attorneys for PetitionerCOUNTY OF HAWAIʻI
PATRICK WONG 5878Corporation CounselBRIAN A. BILBERRY 7260Deputy Corporation CounselCounty of Maui200 South High StreetWailuku, Hawaiʻi 96793Telephone: (808) 270-7740Facsimile: (808) [email protected]@co.maui.hi.us
Attorneys for PetitionerCOUNTY OF MAUI
MAUNA KEA TRASK 8418County AttorneyMATTHEW M. BRACKEN 10267First Deputy County AttorneyCounty of Kauai4444 Rice Street, Suite 220Lihue, Hawaiʻi 96766 Telephone: (808) 241-4930Facsimile: (808) [email protected]@kauai.gov
Attorneys for PetitionerCOUNTY OF KAUAʻI
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TABLE OF CONTENTSPage
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................3
A. FACTUAL BACKGROUND..................................................................................3
1. The ballot question language specified by SB 2922 ..................................3
2. The Counties’ real property tax revenues...................................................4
3. Requested pre-election relief......................................................................5
B. PROCEDURAL BACKGROUND..........................................................................5
LEGAL STANDARDS ...................................................................................................................6
A. A Ballot Question Must Be Clear and Not Misleading ...........................................6
B. The Average Voter Is the Touchstone for Construing Ballot Questions .................7
C. Pre-Election Challenges Are Preferable to Post-Election Challenges.....................7
ARGUMENT...................................................................................................................................8
I. The Ballot Question Should Be Invalidated Because It Is Unclear and Misleading................8
A. It is misleading to ask voters to authorize a tax without using the word “tax”........8
B. “Investment real property” is misleading because “investment” is not defined......9
C. It is misleading to tell voters the ballot measure is to “support public education”when the proposed constitutional amendment does not require the legislature toincrease spending for public education..................................................................10
D. The phrase “as provided by law” misleads voters into thinking that current lawalready allows the state legislature to impose a real property tax when in fact itdoes not ..................................................................................................................11
II. An Extraordinary Writ Is the Only Way for the Counties to Obtain the Pre-Election ReliefThey Are Seeking...................................................................................................................11
CONCLUSION..............................................................................................................................14
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TABLE OF AUTHORITIES
PageHawaiʻi Cases
Blair v. Cayetano,73 Haw. 536, 836 P.2d 1066 (1992) ....................................................................................... 12
Lane v. Fern,20 Haw. 290 (1910) ................................................................................................................ 12
Office of Disciplinary Counsel v. Au, Nos. 26517 & 28323,2007 Haw. LEXIS 18, 2007 WL 624157 (Jan. 19, 2007) ...................................................... 13
State ex rel. Bronster v. Yoshina,84 Haw. 179, 932 P.2d 316 (1997) ..................................................................................... 7, 12
Other Cases
Askew v. Firestone,421 So. 2d 151, 156 (Fla. 1982).............................................................................................. 13
Boucher v. Bomhoff,495 P.2d 77 (Alaska 1972)...................................................................................................... 11
Boyd v. Jordan,35 P.2d 533 (Cal. 1934) ........................................................................................................ 8, 9
City of McAllen v. McAllen Police Officers Union,221 S.W.3d 885 (Tex. App. 2007).......................................................................................... 12
Gallivan v. Walker,54 P.3d 1069 (Utah 2002)....................................................................................................... 14
Helton v. Jacobs,57 S.W.3d 180 (Ark. 2001)..................................................................................................... 12
Kendoll v. Rosenblum,364 P.3d 678 (Or. 2015) ........................................................................................................... 7
Kromko v. Superior Court,811 P.2d 12 (Ariz. 1991)........................................................................................................... 8
Let Miami Beach Decide v. City of Miami Beach,120 So. 3d 1282, (Fla. App. 2013).......................................................................................... 12
Lopez v. Kase,975 P.2d 346 (N.M. 1999) ...................................................................................................... 14
Molera v. Arizona,(available on Arizona Supreme Court website) ...................................................................... 13
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McKinney v. Superior Court,21 Cal. Rptr. 3d 773 (2004) .................................................................................................... 14
Parents Involved in Community s Schs v. Seattle School Dist. No. 1,72 P.3d (Wash. 2003)................................................................................................................ 7
Roberts v. Priest,20 S.W.3d 376 (Ark. 2000)................................................................................................... 6, 7
State ex rel. Voters First v. Ohio Ballot Bd.,978 N.E.2d 119, 120, 122, 130 (Ohio 2012)........................................................................... 12
Stop Slots Md 2008 v. State Bd. of Elections,34 A.3d 1164 (Md. 2012) ......................................................................................................... 7
United States v. Bongiorno,2006 U.S. Dist. LEXIS 24830, (S.D.N.Y. May 1, 2006)...........................................................6
Walton v. McDonald,97 S.W.2d 81 (Ark. 1936)............................................................................................. 9, 10, 11
Watland v. Lingle,104 Haw. 128, 85 P.3d 1079 (2004) ......................................................................................... 7
Constitution
Haw. Const., art. VIII.................................................................................................................. 1, 3
Haw. Const., art. X.......................................................................................................................... 3
Statutes
Cal. Elec. Code § 9087(b)............................................................................................................... 7
HRS § 46-72 ................................................................................................................................... 4
HRS § 11-118.5 ...................................................................................................................... 2, 3, 6
HRS § 602-5 ................................................................................................................................... 3
HRS § 602-58(1)............................................................................................................................. 6
Utah Code Ann. § 20A-7-703(2)(b)................................................................................................ 7
Rules
HRAP Rule 11(b)(1) ....................................................................................................................... 5
HRAP Rule 12.1 ............................................................................................................................. 6
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HRAP Rule 21 ...................................................................................................................... 3, 7, 13
HRAP Rule 27(a)............................................................................................................................ 6
HRAP Rule 40.2 ............................................................................................................................. 6
HRE Rule 201(b) ............................................................................................................................ 4
Other Authorities
BLACK'S LAW DICTIONARY (9th ed. 2009)................................................................................ 6, 13
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S. C. No. _______________________
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
CITY AND COUNTY OF HONOLULU,COUNTY OF HAWAIʻI, COUNTY OF MAUI, COUNTY OF KAUAʻI,
Petitioners,
vs.
SCOTT NAGO, in his capacity as ChiefElection Officer, RONALD D. KOUCHI, inhis capacity as President of the Hawaiʻi, in hisofficial capacity, SCOTT K. SAIKI, in hiscapacity as Speaker of the Hawaiʻi House,
Respondents.
ORIGINAL PROCEEDINGCIVIL NO. 18-1-1326-08 (JPC)(Declaratory Judgment; Injunctive Relief)
PETITION FOR EXTRAORDINARY WRITSEEKING PRE-ELECTION RELIEF
PETITION FOR EXTRAORDINARY WRIT SEEKING PRE-ELECTION RELIEF
INTRODUCTION
The Hawaiʻi Constitution grants the Petitioner Counties exclusive authority over real
property taxation (article 8, section 3), and this is the only constitutionally-dedicated source of
tax revenues the counties can assess and receive. The legislature has proposed a ballot question
for the upcoming general election on November 6, 2018, that would amend the Hawaiʻi
Constitution by carving away at the counties’ exclusive authority to impose real property taxes
by allowing the legislature to impose a tax on certain real property.
But, the ballot question fails to mention that a new “tax” is at stake.
The Petitioner Counties1 challenge the ballot question because it is unclear and
misleading. The ballot question, using the exact language proposed by the legislature in
1 City and County of Honolulu, County of Hawaiʻi, County of Maui, and County of Kauaʻi (collectively “Counties”).
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SB 2922,2 will ask Hawaiʻi voters the following question:
Shall the legislature be authorized to establish, asprovided by law, a surcharge on investment realproperty to be used to support public education?3
The standard for reviewing ballot questions is set out in Hawaiʻi Revised Statutes
(“HRS”) § 11-118.5, providing in pertinent part that the “language and meaning of a
constitutional amendment shall be clear and it shall be neither misleading nor deceptive.” HRS §
11-118.5.
The ballot question is unclear and misleading in multiple ways:
1 “surcharge” It is misleading to ask voters to amend the constitution to authorize the
legislature to impose a new tax without using the word “tax”: using the
unclear euphemism “surcharge” without referring to “tax” disguises the
tax.
2 “investment”real property
The legislature could consider all real property, including personal
residences, to be a form of investment, and so the word “investment” is
unclear and misleading.
3 “to be used tosupport publiceducation”
This phrase could mislead voters into thinking that a Yes vote will
increase spending for public education when nothing in SB 2922 requires
such a result.
4 “as providedby law”
The legislature is not presently authorized to establish a real property tax
surcharge and, therefore, “as provided by law” is unclear and misleading.
2 See Exhibit 1, SB 2922, S.D.1, H.D.1, 2018 Legislature (“SB 2922”).
3 See Exhibit 2, ballot specimens for each of the four Counties.
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The present writ presents two essential questions for this Court’s determination:
(1) Should the unclear and misleading ballot question be invalidated?
(2) Are the Counties entitled to pre-election relief?
The Counties contend that the ballot question is unclear and misleading, in violation of
HRS § 11-118.5 and should be invalidated prior to the election.
As for pre-election relief, Respondent Chief Election Officer Nago has made clear that it
is no longer practical to change the printed ballots prior to the November 6, 2018, general
election (“General Election”), but if a court were to declare the ballot question to be invalid, he
could issue a public proclamation stating that the question regarding the constitutional
amendment should not have appeared on the ballot and should be considered stricken, and that
any votes for or against the measure will not be counted and have no impact.
This is the relief the Counties seek in this writ,4 and there is ample case law in Hawaiʻi
and other jurisdictions holding that pre-election relief is available.
BACKGROUND
A. FACTUAL BACKGROUND
1. The ballot question language specified by SB 2922.
The 2018 Legislature proposed a constitutional amendment to Articles VIII and X of the
Hawaiʻi Constitution. See Exhibit 1, SB 2922. The legislature specified the exact constitutional
ratification question to be printed on the General Election ballot.5
4 This is a petition for an extraordinary writ for pre-election relief, but it does not turn on legaldistinctions between the various forms of writ. The Counties alternatively seek (1) a writ ofmandamus or prohibition (HRS § 602-5, considered in light of HRAP Rule 21, gives this Courtjurisdiction over all such writs), or (2) a petition to accept original jurisdiction.
5 See Exhibit 1, SB 2922 §4; Exhibit 3, Nago Declaration dated Sept. 5, 2018, §§ 7, 9.
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2. The Counties’ real property tax revenues.
For 40 years, since the 1978 Constitutional Convention, the Hawaiʻi Constitution has
granted the Counties exclusive authority over real property taxation, which is their only
constitutionally-dedicated source of tax revenue. The revenues derived from real property taxes
for the Counties in fiscal year 2018-2019 total $1.265 billion, or about 85% of the General Funds
for City and County of Honolulu, $318 million for Maui, $310 million for Hawaiʻi County, and
$135 million for Kauaʻi.6 This tax revenue is critical to support most county-provided core
services, including public safety, sanitation and sewer facilities, parks and recreation, human
resources, facility maintenance, planning and permitting, maintenance and repair of highways
and streets, and the legislative and administrative governance functions of the Counties. Such tax
revenue also helps pay for the Counties’ numerous capital improvement projects.
The State of Hawaiʻi, by contrast, has numerous major sources of tax revenues that are
not available to the Counties. For example, 48% of State revenue ($3.2 billion) was derived from
the general excise tax in fiscal year 2016-2017, and 32% ($2.1 billion) from individual income
tax.7 The State also derives substantial revenues from the transient accommodations tax, the
corporate income tax, the insurance premiums tax, and other taxes, altogether producing over $6
billion in revenue.8
6See City Reports on the Department of Budget and Fiscal Services Real Property AssessmentDivision website, available at https://www.realpropertyhonolulu.com/rpa-report/#2018.
The Counties ask the Court to take judicial notice of the matters in official websites cited in thewrit and its exhibits pursuant to Rule 201(b) of the Hawaiʻi Rules of Evidence because they are not subject to reasonable dispute because they are “capable of accurate and ready determinationby resort to sources whose accuracy cannot reasonably be questioned.”
7 See State Reports on the Department of Budget and Fiscal Services Real Property AssessmentDivision website, available at https://www.realpropertyhonolulu.com/rpa-report/#2018.
8 Id.
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3. Requested pre-election relief.
Respondent Chief Election Officer Nago has made clear that it is no longer practical to
change the ballot prior to the General Election.9 However, if a court were to find the ballot
question to be invalid, he could issue a public proclamation stating that the question regarding
the constitutional amendment should not have appeared on the ballot and should be considered
stricken, and that any votes for or against the measure will not be counted and have no impact.10
B. PROCEDURAL BACKGROUND
The Counties’ filed a second amended complaint for declaratory and injunctive relief on
August 29, 2018. 11 On August 31, 2018, they filed a motion for preliminary injunction seeking
to invalidate the SB 2922 ballot question. The circuit court, with the Honorable Jeffrey P.
Crabtree presiding, denied the motion in a written order dated September 20, 2018 (Exhibit 5),
and certified the question for interlocutory appeal on September 21, 2018.
The Counties intend to file a prompt notice of appeal. However, it will be virtually
impossible to present the issue to the Hawaiʻi Supreme Court in time to receive relief prior to the
General Election. The circuit court clerk will have up to 60 days to assemble, certify, and
electronically transmit the record to the appellate clerk (HRAP 11(b)(1)),12 which might be
completed after the General Election. There are also a number of additional procedural hurdles,
including required actions by courts and court clerks that must take place before the appeal can
9 Exhibit 3, Nago declaration dated Sept. 5, 2018 ¶ 25 et seq.
10 Id. ¶ 63, 64; Exhibit 4, Nago declaration dated Aug. 31, 2018, ¶ 61.
11 City and County of Honolulu, et al. v. Ige, et al., Civ. No. 18-1-1326-08 JPC.
12 See, e.g., Radcliffe v. State, No. CAAP-17-0000594 (notice of appeal filed on Aug. 9, 2017,dkt. no. 1, and record on appeal filed six weeks later on Sept. 26, 2017, dkt. no. 15.)
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be brought before this Court.13
In light of the foregoing, the present extraordinary writ is the only practical way that the
Counties can obtain pre-election relief.
LEGAL STANDARDS
A. A Ballot Question Must Be Clear and Not Misleading.
HRS § 11–118.5 (“Constitutional amendments, proposed”) sets the standard for
constitutional amendments, including ballot questions: “The language and meaning of a
constitutional amendment shall be clear and it shall be neither misleading nor deceptive.” This
expresses three separate requirements—clear, not misleading, and not deceptive—such that a
ballot measure that violates any one of them is invalid.
“Clear” means “free from doubt; sure” or “unambiguous.” BLACK’S LAW DICTIONARY
287 (9th ed. 2009). On the other hand, no legislative definition is provided sufficient to
distinguish between “misleading” and “deceptive”14 and, therefore, this petition will focus on the
“clear” and “not misleading” requirements.
A ballot question can be misleading in different ways. Roberts v. Priest, 20 S.W.3d 376,
13 Statements of jurisdiction (and opposition) are filed within ten days after record on appeal isfiled. HRAP 12.1. An application for transfer to the supreme court may be filed no earlier thanten days after the filing of the record on appeal (HRAP 40.2(a)(2)). Any response is due fivedays later. HRAP 40.2(d), 27(a). Transfer will be mandatory under HRS § 602-58(1) because thevalidity of the ballot question is a “question of imperative or fundamental public importance.”The supreme court would then have thirty days to grant the mandatory application. HRAP40.2(f). The Counties could then move under FRAP 27(a) for an expedited briefing schedule andoral argument set prior to the election to obtain the pre-election relief they are requesting, but itis highly unlikely this could take place prior to the General Election.
14 Dictionary definitions of “deceptive” can be circular or reference “misleading.” See, e.g., theauthoritative WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED 585 (1986), defining “deceptive’ as “tending to deceive: having power tomislead.”); United States v. Bongiorno, 2006 U.S. Dist. LEXIS 24830, at *20 (S.D.N.Y. May 1,2006) (quoting previous Webster’s definition).
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380 (Ark. 2000) (A ballot question “must be free from any misleading tendency, whether of
amplification, of omission, or of fallacy….” The central question for a court is “whether, in the
voting booth, the voter is able to reach an intelligent and informed decision for or against the
proposal and to understand the consequences of his or her vote….” Id.)
B. The Average Voter Is the Touchstone for Construing Ballot Questions.
The “average voter” is the “touchstone” for construing ballot questions. Parents Involved
in Community Schools Schs v. Seattle School Dist. No. 1, 72 P.3d 151, 154 (Wash. 2003)
(quoting Ninth Circuit order).15
C. Pre-Election Challenges Are Preferable to Post-Election Challenges.
“[E]fficient use of public resources demand that we not allow persons to gamble on the
outcome of the election contest then challenge it when dissatisfied with the results, especially
when the same challenge could have been made before the public is put through the time and
expense of the entire election process.” State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 185,
932 P.2d 316, 322 (1997). The “better practice” is “to expedite legal action prior to the election.”
Id.; accord, Watland v. Lingle, 104 Hawai‘i 128, 137, 85 P.3d 1079, 1088 (2004).
Extraordinary writs are expressly authorized by FRAP 21(e).
15 See also Cal Elec Code § 9087(b) (“information the average voter needs to adequatelyunderstand the measure”); Utah Code Ann. § 20A-7-703(2)(b) (“clear and concise language thatwill easily be understood by the average voter”); Kendoll v. Rosenblum, 364 P.3d 678, 682(Ore. 2015) (“in a manner that is understandable to the average voter”); Stop Slots Md 2008 v.State Bd. of Elections, 34 A.3d 1164, 1179 (Md. 2012) (“to permit an average voter…toexercise an intelligent choice.”) (Emphases added to all quotations.)
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ARGUMENT
I. The Ballot Question Should Be Invalidated Because It Is Unclear and Misleading.
A. It is misleading to ask voters to authorize a tax without using the word “tax.”
All voters know what a “tax” is.16 On the other hand, voters are unlikely to know what a
“surcharge” means and that it can be a tax,17 or that a Yes vote on the ballot question could
authorize a new tax imposed by the legislature on their real property.
The voter turnout for the last non-presidential general election in 2014 was 369,642, or
52.3% of all registered voters18 and, of those 369,642 voters, as many as 40% (147,993) could
have been homeowners who held their property in fee.19
It is impermissible to make “no reference whatsoever to a tax, even though the sole
purpose of the measure was to raise revenue for government.” Kromko v. Superior Court, 811
P.2d 12, 20 (Ariz. 1991), discussing Boyd v. Jordan, 35 P.2d 533, 534 (Cal. 1934). Nor is it
permissible to “describe[] everything that could induce electors to sign but omit[] the one aspect
that would cause hesitation—the imposition of new taxes.” Id. at 21, citing Boyd at 459.
The California Supreme Court granted a writ in Boyd to compel the secretary of state to
refrain from placing on the ballot a proposed initiative regarding a constitutional amendment
16 See Exhibit 6, sample “Real Property Tax Bill” that is mailed to real property taxpayersyearly by the City & County of Honolulu, Division of Treasury; see also Exhibit 7, “RealProperty Tax Electronic Payment Site” allowing taxpayers to pay online, available at:
https://www.honolulu.gov/cms-bfs-menu/site-bfs-sitearticles/6418-property-tax-payments.html.
17 See six definitions of the noun “surcharge” in WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 2299 (1986), attached as Exhibit 8.
18 See Exhibit 9, Final Summary Report by Office of Elections, p.2, available at:
http://files.hawaii.gov/elections/files/results/2014/general/histatewide.pdf.
19 See Exhibit 10, indicating 147,993 exemptions for fiscal year 2014-2015 for “Homes – Fee –(Basic), available at: https://www.realpropertyhonolulu.com/media/1084/14_Exhibitpdf.
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containing the words “Initiative Measure Providing for Adoption of Gross Receipts Act.” The
court held that while “the amendment has for its sole purpose the raising of revenue for the
support of the state government,” it makes “no reference to a tax or to the fact that the proposed
amendment is a revenue measure.” 35 P.2d at 533–34. It “did not bring to his mind any idea or
suggestion whatever that the amendment proposed related to taxation in any form whatever.” Id.
at 534. Another supreme court disapproving a ballot that did not mention a tax stated: “Everyone
knows the general operation of a sales tax. The undisclosed fact is that such a law will be put in
operation.” Walton v. McDonald, 97 S.W. 2d 81, 83 (1936).
Voters are clearly reluctant to approve of new taxes being imposed on them. The
omission of the word “tax” from the ballot question therefore renders it unclear and misleading.
B. “Investment real property” is misleading because “investment” is not defined.
All types of real property—including personal residences—can be considered as a form
of investment because they can be bought at one price and sold at another.20 There is nothing in
SB 2922 that would prevent the legislature from taxing all real property—including personal
residences with home exemptions—as a form of investment. Earlier versions of SB 2922
contained definitions that expressly excluded property with a home exemption.21
Surely voters who pay real property taxes on their homes would want clear and sufficient
information to understand such an implication of a Yes vote. The voters should be informed that
the legislature is seeking to grant itself a new, additional power of taxation that it has not had for
40 years, since 1978.
20 See Exhibit 11, available at:https://loans.usnews.com/how-your-home-stacks-up-as-an-investment.
21 See Exhibit 12, § 1, original version of SB 2922 (Jan. 24, 2018), defining “Residentialinvestment property” as excluding property “for which the owner does not qualify for ahomeowner’s exemption”; and SB 2922 S.D.1 § 2 containing the same exclusion.
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Therefore, the phrase “investment real property” as used in the ballot—with neither
definition nor limitation—is unclear and misleading.
C. It is misleading to tell voters the ballot measure is to “support publiceducation” when the proposed constitutional amendment does not requirethe legislature to increase spending for public education.
The ballot question gives the misleading impression that revenues received from the
legislature’s proposed new real property tax will increase funding for public education when, in
fact, there is nothing in SB 2922 that requires such a result.22 The state operating budget for
education is $1.99 billion,23 nearly identical to the revenues derived from real property taxes for
all four Counties combined in fiscal year 2018-2019.24 So, unless the legislature more than
doubles the current tax burden on real property taxpayers throughout the state, the legislature
could merely substitute the revenues derived from its new real property tax for revenues derived
from other funding sources, with no net increase for public education.
The ballot question’s main selling point is that it will “be used to support public
education.” Voters may well assume this means an increase in funding for public education. This
lulling of the voters is reminiscent of Walton, 97 S.W. 2d at 82 (1936), in which the ballot
indicated its purpose as being “to provide for the assistance of aged and/or blind persons.” The
court noted the “appeal to all humane instincts. Few would object to some provision being made
22 This disconnect has not gone unnoticed. See Exhibit 13, available at:http://www.staradvertiser.com/2018/09/02/hawaii-news/volcanic-ash/volcanic-ash-be-honest-about-schools-tax-before-it-goes-on-ballot/; Exhibit 14, available at:https://www.bizjournals.com/pacific/news/2018/08/29/counties-join-honolulu-lawsuit-seeking-to-cut.html.
23 Exhibit 15, also available at:http://www.hawaiipublicschools.org/ConnectWithUs/Organization/Budget/Pages/home.aspx.
24 The total for the four Counties is approximately $2 billion: $1.265 billion for City and Countyof Honolulu, $318 million for Maui, $310 million for Hawaiʻi County, and $135 million for Kauaʻi. Data available at https://www.realpropertyhonolulu.com/rpa-report/#2018.
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for the support of the aged and blind….” Id at 83. But the court disapproved of the wording
because it failed to mention that a tax was at stake. Id.
Supporting public education is likewise an “appeal to all human instincts,” but there is no
requirement that funding for this purpose be increased. The ballot question is therefore unclear
and misleading for this reason as well.
D. The phrase “as provided by law” misleads voters into thinking that currentlaw already allows the state legislature to impose a real property tax when infact it does not.
Nothing in current Hawaiʻi law provides for the legislature to impose a real property tax
“surcharge” on “investment real property.” In fact, Article VIII, section 3 of the constitution
gives to the Counties the exclusive power to tax real property. The ballot question gives a
misleading impression to the contrary. The reference to “as provided by law” could make voters
think that a Yes vote is a necessary form of housekeeping to bring current law into compliance or
the implementation of a current law that already authorizes the legislature to impose a new tax.
Similarly, in Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972), the supreme court found that
inclusion of the unauthorized prefatory language “As required by the Constitution” was
“inherently misleading.” Id. at 78, 81.
Therefore, the phrase “as required by law” is unclear and misleading.
II. An Extraordinary Writ Is the Only Way for the Counties to Obtain thePre-Election Relief They Are Seeking.
For over a century the Hawaiʻi Supreme Court has authorized pre-election challenges
seeking to enforce the state’s election laws.
[T]the following may be stated as the approved rule: All provisions of theelection law are mandatory if enforcement is sought before election in adirect proceeding for that purpose[.]
Lane v. Fern, 20 Haw. 290, 302 (1910); see also Helton v. Jacobs, 57 S.W.3d 180, 186 (Ark.
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2001) (“This court has consistently drawn a clear distinction between causes of action that accrue
pre-election and those that accrue post-election after the voters have spoken.”).
This Court has indicated a strong preference for pre-election challenges when possible.
See State ex rel. Bronster, 84 Hawai‘i, at 185, 932 P.2d at 322. (stating that the “better practice”
is “to expedite legal action prior to the election.”)
For example, this Court affirmed the availability of pre-election relief on September 17,
1992. Exercising original jurisdiction, it enjoined the lieutenant governor in his capacity as chief
election officer from placing two constitutional amendments on the ballot for the 1992 general
election. Blair v. Cayetano, 73 Haw. 536, 538, 551, 836 P.2d 1066, 1068, 1074 (1972).
Other jurisdictions also permit pre-election relief. See, e.g., Let Miami Beach Decide v.
City of Miami Beach, 120 So. 3d 1282, 1284, 1286, 1292, 1293 (Fla. App. 2013) (removing
question relating to city charter provision from Nov. 5, 2013, election on Sept. 20, 2013, because
its “true effect is different from its apparent effect” and it was confusing and violated the
requirement of ballot clarity); State ex rel. Voters First v. Ohio Ballot Bd., 978 N.E.2d 119, 120,
122, 130 (Ohio 2012) (granting pre-election writ of mandamus on September 12, 2012, prior to
the general election on Nov. 6, 2012, general election, because the “factual inaccuracy and the
material omissions deprive voters of the right to know what it is they are being asked to vote
upon, and the factual inaccuracy concerning the funding… is in the nature of a persuasive
argument against the proposed amendment.”); Florida Dept. of State v. Fla. State Conference of
NAACP Branches, 43 So. 3d 662, 664, 669 (Fla. 2010) (striking legislatively proposed
constitutional amendment from Nov. 2010 general election ballot on Aug. 31, 2010, because it
was misleading and the ballot language did not “inform the voter of the true purpose and effect
of the amendment”); City of McAllen v. McAllen Police Officers Union, 221 S.W.3d 885 (Tex.
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App. 2007) (issuing injunction prohibiting city from using misleading and confusing ballot
language in an upcoming election); Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982) (issuing
order on Oct. 21, 1982, striking constitutional amendment from Nov. 1992 general election
ballot because language misleading concerning material changes to an existing constitutional
provision and lacked “a clear and unambiguous explanation of the measure’s chief purpose”).
Less than a month ago, another supreme court considered an expedited election matter
seeking to enjoin a ballot measure. The court issued an order on August 29, 2018, in Molera v.
Reagan, 25 because the 100-word description of a proposition “did not accurately represent the
increased tax burden on the affected classes of taxpayers,” creating “a significant danger of
confusion or unfairness.”
HRAP Rule 21(e) expressly authorizes application for extraordinary writs. The case law
based on Rule 21(e) is sparse and does not address the scope of extraordinary writs. See Office of
Disciplinary Counsel v. Au, Nos. 26517, 28323, 2007 Haw. LEXIS 18, 2007 WL 624157 (Jan.
19, 2007). The meaning of “extraordinary writ” as defined by BLACK’S LAW DICTIONARY 1748
(9th ed. 2009) is “a writ issued by a court exercising unusual or discretionary power.” Another
definition is: “Extraordinary writ is a writ issued by a court exercising unusual or discretionary
power. It can also be a judicial order generally issued by an appellate court to make available the
remedies not regularly within the powers of lower courts. Extraordinary writs are also termed as
prerogative writs.”26
A pre-election challenge to a ballot question would appear to fall within the ambit of
25 See Exhibit 16, available on the Arizona Supreme Court’s official website at:https://www.azcourts.gov/Portals/21/Elections/CV-18-0218-APEL.pdf?ver=2018-08-30-082417-400. The order indicated that a written opinion would follow.
26 See https://definitions.uslegal.com/e/extraordinary-writ/.
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these definitions of an extraordinary writ. See Gallivan v. Walker, 54 P.3d 1069, 1067–68,1100
(Utah 2002) (granting extraordinary writ on August, 22, 2002, and issuing order on August 26,
2002, prior to the November 5, 2002, general election and stating, “Our cases demonstrate the
practical utility of the flexibility of extraordinary writs in various circumstances,” and “this court
has…considered the exigencies dictated by timing in an election-related case to permit the
determination of a constitutional question in an extraordinary writ proceeding.”); Lopez v. Kase,
975 P.2d 346, 349 (N.M. 1999) (stating that “a post-election petition for an extraordinary writ is
generally less likely to present a compelling need for immediate relief in this Court than a pre-
election petition). Furthermore, there is a “rule that one cannot pass up a preelection remedy in
favor of a postelection challenge.” McKinney v. Superior Court, 21 Cal. Rptr. 3d 773, 776–77
(App. 2004) (stating that a pre-election writ of mandate is an appropriate remedy).
Granting an extraordinary writ is the only practical way the Counties can obtain pre-
election relief prior to November 6, 2018.
CONCLUSION
The Counties respectfully request that (1) the petition be granted, (2) the Court set an
expedited schedule for briefing and oral argument, and (3) the Court issue an order granting the
Counties their requested relief prior to the November 6, 2018, general election.
DATED: Honolulu, Hawaiʻi, September 26, 2018.
DONNA Y. L. LEONGCorporation Counsel
By /s/ Robert M. Kohn
ROBERT M. KOHNNICOLETTE WINTERDeputies Corporation Counsel
Attorneys for PetitionerCITY AND COUNTY OF HONOLULU
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DATED: Hilo, Hawaiʻi, September 26, 2018.
JOSEPH K. KAMELAMELACorporation Counsel
By /s/ Laureen L. Martin
LAUREEN L. MARTINDeputies Corporation Counsel
Attorneys for PetitionerCOUNTY OF HAWAIʻI
DATED: Wailuku, Hawaiʻi, September 26, 2018.
PATRICK WONGCorporation Counsel
By /s/ Brian A. Bilberry
BRIAN A. BILBERRYDeputy Corporation Counsel
Attorneys for PetitionerCOUNTY OF MAUI
DATED: Lihue, Hawaiʻi, September 26, 2018.
MAUNA KEA TRASKCounty Attorney
By /s/ Matthew M. Bracken
MATTHEW M. BRACKENFirst Deputy County Attorney
Attorneys for PetitionerCOUNTY OF KAUAʻI